Truce achieved in Berkeley free speech fight

1of2Student protester Mario Savio is roughed up by two Berkeley police officers as they arrest him during a Free Speech Movement demonstration at UC Berkeley.Photo: Nat Farbman / Life Picture Collection / Getty 1964

A truce of sorts was reached last week in the latest battle over free speech at UC Berkeley. Rare is the lawsuit settlement in which each side can credibly claim a level of vindication. This is one.

Young America’s Foundation, the conservative nonprofit that bankrolled the lawsuit against the university, hailed the settlement as a “landmark victory for free expression.” Its statement triumphantly declared that UC Berkeley could “no longer wantonly treat conservative students as second-class members of its community while ignoring the guaranteed protections of the First Amendment.”

Conversely, a spokesman for the university said the settlement essentially validates its existing policies on security fees and time-and-place restrictions that apply to all campus speakers, regardless of ideology. Spokesman Dan Mogulof also emphasized that a federal court had upheld the constitutionality of those policies seven months ago.

Here is the welcome bottom line: Conservatives are guaranteed a platform at the university of the 1960s Free Speech Movement. The demonstrators who have tried to silence high-profile appearances by right-wing provocateurs such as Milo Yiannopoulos, Ben Shapiro and Ann Coulter will not be able to stop future appearances by threatening havoc.

And, just as important: The conservatives who have tried to claim censorship and martyrdom when they encounter the conditions imposed on all other groups have lost their talking point. The Young America’s Foundation agreed to this deal and will be paid $70,000 of its attorney fees.

None of this is to defend the speakers that the Berkeley College Republicans have invited to campus. It was as though some were selected to bring more heat than light to the public debate — and to test the limits of the university’s tolerance for offensive speech. Yiannopoulos, in particular, is all about shock: targets of his vitriol have included women, Black Lives Matter activists, transgender people and Muslims.

Coincidentally, I engaged in a roundtable discussion about free speech last week put together by the Atlantic magazine. Participants came from academia, law, the arts, journalists and social-justice groups. If there were two points of consensus among the many divergent perspectives, they were that free speech is being threatened as rarely before — and that defense of free speech necessarily requires defense of expression that many of us might find repugnant.

As one of the attendees pointed out, “civility tends to be an excuse to censor.”

Students and faculty jam Sproul Plaza on the UC Berkeley campus as they stage a walkout in protest of recent budget cuts and fee hikes.

Photo: Michael Macor / The Chronicle 2009

The American Civil Liberties Union has stood by this principle for nearly a century. In recent years, it has come to the legal defense of such repulsive acts as the anti-LGBT protests of the Westboro Baptist Church at military funerals (2010), the right of an anti-Muslim group called Bible Believers to protest at an Arab street festival in Dearborn, Mich. (2014), and the effort of the Ku Klux Klan to “adopt a highway” in Georgia (2012).

It’s more than disingenuous for the college Republicans to compare the rectitude or the circumstances of their cause with the Free Speech Movement that consumed the campus and captivated the nation in the 1960s. That movement, led by graduate student Mario Savio, was about challenging prohibitions on any student political activities at a time when the reverberations of the McCarthy era and the disenchantment with the Vietnam War cried out for engagement at institutions of higher education.

Berkeley conservatives have experienced no such repression.

As Mogulof noted, nine conservative speakers have appeared on campus this year without disruption and without the sponsoring student group having to pay a security fee.

While the Young America’s Foundation continues to insist the university had unlawfully discriminated against conservative speakers — citing, in part, the $9,000 security fee for Shapiro’s talk, far higher than assessed on a 2011 speech by Supreme Court Justice Sonia Sotomayor — Mogulof said the requirements are the same whether the speaker is “Bernie Sanders, Karl Marx or Fidel Castro.” He noted that the university spent an extra $600,000 on security for the Shapiro event.

Under the settlement, which largely reflects the current policy, no rental or security fees would be required for events in classrooms or venues affiliated with the student union. Sponsoring groups would still be assessed a security fee at a major venue such as Zellerbach Hall.

“That was true before the settlement, and that was true after the settlement,” Mogulof said, adding, “We believe this outcome is indistinguishable from what prevailing in court would have been.”

So, at least for the moment, there is a peace treaty between the conservative groups and the university, even as each side is spinning the settlement as a decisive victory.

But all is not bliss in Berkeley. There is a third party that was not involved in this agreement: the masked protesters who smashed windows and set fires that forced the cancellation of the Yiannopoulos speech in February 2017. The specter of their destruction and violence will continue to consume planning for future talks by controversial speakers on the right.

But they cannot be allowed to silence the voices of others, no matter how objectionable to Berkeley sensibilities. The settlement shows the university’s commitment to prevent what has been called a “heckler’s veto.”

It’s not going to be easy, and it’s not going to be cheap. But the First Amendment leaves no option but to defend the right of provocateurs to provoke.

Before joining the opinion pages, he directed the newspaper’s East Bay news coverage. He started at The Chronicle in 1990 as an assistant city editor.

John began his journalism career as a reporter for the Red Bluff Daily News. Two years later, he was promoted to the Washington, D.C., bureau of the newspaper’s parent company, Donrey Media Group. After that, he worked as a general assignment reporter for the Associated Press in Philadelphia and as a statehouse reporter and assistant city editor for the Denver Post.

He graduated from Humboldt State University in 1977 with a degree in journalism. He received a Distinguished Alumni Award from HSU in 2009 and was the university’s commencement speaker in 2010.